divorce before entring usa

[pushbrk 12,152]

hi this is first time im posting

i have an immigrent visa valid for 6 months IR1 which is about to expire in few months my usc wife is in usa and things are not good between us and she is planning to divorce so i want to knw can i still go to usa as i already have a valid visa?thnx in advance

The answers you got sound like "wishful thinking" and not based on facts.

Your visa was issued with a sole purpose to allow you to enter the USA and to live with your spouse. If you divorce before entering USA, visa is invalid. If you enter the USA using IR-1 visa without the intent to live with your spose, you are misrepresenting yourself.

Immigration officer at POE suppose to verify if the reason that the visa was issued still exists, or in words of IO manual Inspecting New Immigrant Apllicants: "you will need to insure that either a qualifying relationship or offer of employment continue to exist."

All well and good but it really isn't possible to insure either of the above. That's why I've never heard of any attempt by a CBP officer to do so. It's not like they bring the waiting USC down for an interview or require a re-affirmation of the job offer.

[jula 0]

would you guys advice the same thing to someone who, for example, got student visa but decided not to go to school to still use that student visa to enter the USA?

jhon85 did not "earn" the right to live in the USA by being married to USC for 2+ years. What's the purpose of that visa? Visa was issued to him as a favour to USC spouse so they can be together.

Let's try to look at the situation from the other perspective: I am USC and sponosred my spouse for PR. He just got an immigrant visa, but the things are not good and I want divorce. Should I withdraw my sponsorship? Should I do nothing so he can come to the USA and go his own way, although I'll be resposible for him as per Affidavit of support? What if he is not a nice guy from UK, but from some other country? Would you tell me to try to stop him from comming or he has a "righ" to come and become PR since he got an immigrant visa?

jhon85, this is nothing personaly. Just want to get my point. And all this is not only moral question but also a law.

OK, likely he can enter USA using IR-1. Not too many questions will be asked, I agree. But still he would misrepresent his intention. And he would have to live with it. And cross fingers that it never comes up...

[Caladan 19]

hi this is first time im posting

i have an immigrent visa valid for 6 months IR1 which is about to expire in few months my usc wife is in usa and things are not good between us and she is planning to divorce so i want to knw can i still go to usa as i already have a valid visa?thnx in advance

The answers you got sound like "wishful thinking" and not based on facts.

Your visa was issued with a sole purpose to allow you to enter the USA and to live with your spouse. If you divorce before entering USA, visa is invalid. If you enter the USA using IR-1 visa without the intent to live with your spose, you are misrepresenting yourself.

Immigration officer at POE suppose to verify if the reason that the visa was issued still exists, or in words of IO manual Inspecting New Immigrant Apllicants: "you will need to insure that either a qualifying relationship or offer of employment continue to exist."

All well and good but it really isn't possible to insure either of the above. That's why I've never heard of any attempt by a CBP officer to do so. It's not like they bring the waiting USC down for an interview or require a re-affirmation of the job offer.

That might not matter. (For student visas, they do often require a letter than someone is still currently enrolled.) If the rule is that you must be eligible to use the visa in order to use it, then presenting yourself as if you are eligible, when you are not, would mean you've misrepresented yourself. For example, if C. and I had gotten married after he had been issued the K-1 but before he entered the country, no one would have required me to be there or that we prove that he was single, but he still would have been misusing the visa (and indeed, there was a big case about a couple that did just that.)

What I'm not sure about in this case is whether having the IR-1 counts as the person having the green card already, or as a visa that allows you to get the green card once in the country.

[pushbrk 12,152]

hi this is first time im posting

i have an immigrent visa valid for 6 months IR1 which is about to expire in few months my usc wife is in usa and things are not good between us and she is planning to divorce so i want to knw can i still go to usa as i already have a valid visa?thnx in advance

The answers you got sound like "wishful thinking" and not based on facts.

Your visa was issued with a sole purpose to allow you to enter the USA and to live with your spouse. If you divorce before entering USA, visa is invalid. If you enter the USA using IR-1 visa without the intent to live with your spose, you are misrepresenting yourself.

Immigration officer at POE suppose to verify if the reason that the visa was issued still exists, or in words of IO manual Inspecting New Immigrant Apllicants: "you will need to insure that either a qualifying relationship or offer of employment continue to exist."

All well and good but it really isn't possible to insure either of the above. That's why I've never heard of any attempt by a CBP officer to do so. It's not like they bring the waiting USC down for an interview or require a re-affirmation of the job offer.

That might not matter. (For student visas, they do often require a letter than someone is still currently enrolled.) If the rule is that you must be eligible to use the visa in order to use it, then presenting yourself as if you are eligible, when you are not, would mean you've misrepresented yourself. For example, if C. and I had gotten married after he had been issued the K-1 but before he entered the country, no one would have required me to be there or that we prove that he was single, but he still would have been misusing the visa (and indeed, there was a big case about a couple that did just that.)

What I'm not sure about in this case is whether having the IR-1 counts as the person having the green card already, or as a visa that allows you to get the green card once in the country.

K1 is a different case. They can enter but must return if they don't marry. If you break up and they come for a vacation then return, no problem.

I see the point of misrepresenting their intent though but nobody has pointed to anything in the FAM to back it up.

The way I see, it an IR1 visa holder has been granted unconditional permanent resident status. Whether they choose to enter the USA and become a permanent resident is up to them. The granting, not the using of the visa is the benefit to the USC. Use is up to the visa holder. Show me in the FAM where it says otherwise and I'll stand corrected.

[Caladan 19]

K1 is a different case. They can enter but must return if they don't marry. If you break up and they come for a vacation then return, no problem.

No, you misunderstand my example. When they grant the K-1, one isn't married. One can't get married after that and then use the K-1, even on the grounds 'when it was granted, it was legit, and use of the visa is up to the visa holder for six months.' Likewise, if one drops out of one's degree program, one can't use the student visa, even if it has a couple years left on it and the school hasn't turned you in yet.

This is the question I don't know the answer to. Is the unconditional resident status granted with the visa, or conditional but automatic upon successful later entry? If the former, I agree with you completely. If the latter, I'm not so sure. Although it sounds like the OP isn't divorced yet, and there's certainly no requirement of a happy marriage. But I don't know what happens to his IR-1 status if he never enters the country before getting divorced. Would it come back to bite him later if he had to show that the marriage ended before he entered the US?

This would be a good one to run by a lawyer. A cursory examination of the CFR and FAM says nothing but the visa must be valid and unexpired, but there's many a slip twixt cup and lip.

[Delicia 1]

Seems like some of the replies are being based on hypothetical situations. The facts are: an IR-1 is a 10 year unconditional green card and as long as the IR-1 is still valid, the OP can activate it. Since the OP states they haven't legally divorced, it still stands and even if the couple had a pending divorce, it seems that the visa is still 'unconditional' in that, as opposed to a 2 year conditional green card, there is no stipulation that the OP remain married to the USC spouse. At the time of application and subsequent approval, they were married and they intended to live together as spouses, where is the fraud?

[jula 0]

A person with immigrant visa becomes permanent resident when he/she arrives in USA. Not before. (Those who don't use their imm. visa never become PRs). And at the time of arrival, alien still has to be eligible for the benefit. If divorced, one is not eligible to receive residency based on ex-marriage.

I'll try to find some cases with applicable law... in the meantime, caladan's example, using K1 while being married is one example of misrepresentation. The other, with a long story on this web-site, is when dependant or someone who got visa as unmarried child of USC/PR, marries before entering the USA (doctor and his wife were separately petitioned by their parents as single son/daughter, but they got married before arriving to the USA, 20 years later they found themselves in deep trouble facing deportation).

[jula 0]

The facts are: an IR-1 is a 10 year unconditional green card and as long as the IR-1 is still valid, the OP can activate it.

The title of the topis is "divorce before entering usa".

So, let's say OP divorces before entering USA, do you say he is still entitled use IR-1 and gain permanent residency upon entry?

[Caladan 19]

Seems like some of the replies are being based on hypothetical situations. The facts are: an IR-1 is a 10 year unconditional green card and as long as the IR-1 is still valid, the OP can activate it. Since the OP states they haven't legally divorced, it still stands and even if the couple had a pending divorce, it seems that the visa is still 'unconditional' in that, as opposed to a 2 year conditional green card, there is no stipulation that the OP remain married to the USC spouse. At the time of application and subsequent approval, they were married and they intended to live together as spouses, where is the fraud?

The question is whether he *has* permanent residency before entering the country. Once he does, no question, he has unconditional permanent residency based on a bona fide marriage and if he divorces at a later time, he's just fine. No question there.

But I'm not sure if someone on an unactivated IR-1 counts as a permanent resident "An IR-1 is a 10 year unconditional green card" is not a fact, because it has an expiration date of six months and is a visa.

jula thinks they don't count as a permanent residents until they enter the U.S. and their paperwork is stamped; I suspect that's correct, and that the IR-1 just means that once in the U.S., they're automatically permanent residents. And if he doesn't count as a permanent resident, then it's just like any other visa; one needs to be eligible to use the visa when one uses it, not just when one obtains it. That means if he's divorced, and jula's right, he's not eligible for using a spousal visa.

In any case, I wouldn't be comfortable telling the guy 'sure, get divorced, it will have no standing on your immigration status' because I don't think it's at all clear. Attorney time.

(I have no idea about a divorce that's pending. Another reason to talk to an attorney.)

[Delicia 1]

things are not good between us and she is planning to divorce

OP original post makes me think that the divorce is not finalized or perhaps not even initiated yet.

[pushbrk 12,152]

The facts are: an IR-1 is a 10 year unconditional green card and as long as the IR-1 is still valid, the OP can activate it.

The title of the topis is "divorce before entering usa".

So, let's say OP divorces before entering USA, do you say he is still entitled use IR-1 and gain permanent residency upon entry?

Yes, I think so and challenge any detractors to find something in the FAM that says otherwise. If the OP wants to wear belt and supenders to make certain, all he needs to do is clear the POE before the divorce is final.

[diadromous mermaid 36]

The facts are: an IR-1 is a 10 year unconditional green card and as long as the IR-1 is still valid, the OP can activate it.

The title of the topis is "divorce before entering usa".

So, let's say OP divorces before entering USA, do you say he is still entitled use IR-1 and gain permanent residency upon entry?

Yes, I think so and challenge any detractors to find something in the FAM that says otherwise. If the OP wants to wear belt and supenders to make certain, all he needs to do is clear the POE before the divorce is final.

9 FAM 42.42 N2.1 When Relationship is Terminated

(TL:VISA-470; 10-07-2002)

Unless an application is terminated pursuant to INA 203(g) (see 9 FAM 42.83) or revoked pursuant to 8 CFR 205.1, the approval of a petition to classify an alien as an immediate relative under INA 201(B) or a preference applicant under INA 203(a)(1), (2), (3) or (4) shall remain valid for the duration of the relationship to the petitioner, and of the petitioner’s status, as established in the petition.

[jhon85 0]

thax guys for ur help as i can see some people are realy helpful and some pple like jula are not hapy about me asking a question, i just wantd to tel i am not divorced yet bt things are geting worst its not as if i maried my wife few months ago just to go to usa i have been maried for long time i was planing to go so maybe things mite get better so thts why i was askin if there will be any problems at POE. jula its not easy for someone to leave their home contry and go but sometimes you have to do it for someone you love thnx

[Caladan 19]

Thanks, mermaid. I knew it had to be in there somewhere.

[idocare 3]

wow